This action was founded on a note, the suit originating in a court of a justice of the peace, appealed to the circuit court, and from an adverse verdict and judgment against the plaintiff, the appellant, appeal is prosecuted here.
The execution of the note was admitted, and the only issue raised was appellee's plea of payment. On this issue the evidence was sufficient to go to the jury. *Page 721
As this case must be sent back for another trial, we pretermit a statement of the facts; and of the several instructions refused or granted, complained of as error, we shall consider only one.
For the appellee, defendant in the court below, the court gave the following instruction: "The court instructs the jury for defendant that if you cannot say from the evidence in this case whether or not the note has been paid, then you should find for the defendant.
This instruction is fatally erroneous, and the error therein is not cured by the other instructions, if indeed it were possible to cure. This instruction put the plaintiff to the burden of proving that defendant had not paid the note. Payment is an affirmative defense and the burden is on him who pleads it. He who asserts the affirmative must prove it. Winn v. Skipwith, 14 Smedes M. 14; Porter v. Still, 63 Miss. 357; Archer v. Helm,70 Miss. 874, 12 So. 702; Greenburg v. Saul, 91 Miss. 410, 45 So. 569; 48 C.J., p. 680, section 176; 8 C.J., p. 1011, section 1317. Let the case be reversed and remanded for another trial.
Reversed and remanded.